Elizabeth Denham indicates that application of legislation is determined by nature of information, not technology used

Credit: Pxfuel

Emails from private accounts and WhatsApp messages between officials and ministers are covered by the Freedom of Information Act, the Information Commissioner’s Office has confirmed, following concerns that the use of unofficial comms channels could impede official record keeping and transparency.

Updated guidance from the ICO says that official communications should use corporate channels as far as reasonably practicable, but when this is not possible material should be stored on corporate systems as quickly as possible. It recommended copying messages to an official email address if using a private email account and informing staff how to export material from a messaging app to official systems, something it says should take place frequently.

The guidance from the data watchdog covers all official communications held in non-corporate systems, which also includes including Facebook Messenger and personal mobile devices.

“Regardless of whether you hold it in an official or non-corporate communications channel, all such information held by someone who has a direct, formal connection with the public authority is potentially subject to FOIA,” it says.

The publication comes after several discussions about how records are kept when ministers or officials conduct business via non-traditional channels. 

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Confidential Cabinet Office guidance on the use of instant messaging apps was made public last month, revealing staff were told not to retain records of “routine communications” unless there is an identified need.

The guidance was handed over as part of a High Court case into the government’s use of instant-messaging services. The case, brought by campaigning law group Foxglove and non-profit organisation the Citizens, argues the use of apps like WhatsApp and Signal are an “urgent threat to democratic accountability and to the future of the public record” given that there may be no official records of those conversations.

In April, former cabinet secretary Mark Sedwill called for “separate guidance” on how official records should be kept for communication via WhatsApp or text messages, for example. 

Sedwill was speaking after a controversy over WhatsApp messages between businessman James Dyson and Boris Johnson, in which the PM told Dyson he would “fix” an issue related to tax arrangements for his staff.

In an article for the Municipal Journal this week, information commissioner Elizabeth Denham acknowledged the Covid pandemic had “placed real and understandable pressures on ways of working across the public sector,” including working from home with unfamiliar technology. She said that freedom of information legislation is not based on the technology used, but the nature of the information.

Of the new guidance, Denham wrote: “It now explicitly covers not just emails, but makes clear that conversations over WhatsApp, Facebook Messenger or other private channels are covered by FOI when they are used for official business.”

While using such channels does not break freedom of information or data protection rules, it does mean that information could be forgotten or automatically deleted, frustrating the FOI process and risking official records. 

“It’s also a concern that emails containing people’s personal data may not be properly secured in personal accounts, increasing the risk of a data breach,” Denham added.